Bonum Certa Men Certa

'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

Cloud on beach



Summary: With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. €§ 101 (Section 101); but courts would still see past such façade

THE EPO and USPTO both have a bad new habit that they spread to other patent offices, such as KIPO in Korea. They use or misuse buzzwords. They try to make things outside patent scope seem so innovative that somehow this supposed innovation defies the rules (scope). Sometimes that manages to impress or at least confuse examiners and judges.

"So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords."It's hard to patent software. So it's not hard to see why patent maximalists would pursue such tricks. As recently as Sunday Watchtroll published this rant about Section 101/Alice -- the basis (or legal framework) upon which most software patents become void. "This has prompted many to cast a grim prospect for the software patent industry," Babak Nouri (at Watchtroll) wrote less than a couple of days ago, as if the patents themselves are the industry...

"A Realistic Perspective on post-Alice Software Patent Eligibility" is the headline and here's a snide remark directed at the law itself: "Much of the havoc wrought in the software patent system by the landmark decision Alice v. CLS Bank International, 134 S. Ct. 2347 (2014) stems from the unworkable two-part patent eligibility test based on vaguely defined and nebulous Abstract idea and significantly more constructs. The High court’s reluctance or perhaps inability to precisely define these standards and the perceived lack of discernible consistency by the patent community in the way these standards have been applied in the compendious jumble of case law, has perpetuated a sense of uncertainty. This has prompted many to cast a grim prospect for the software patent industry."

Who said this so-called 'industry' (it's not even an industry) deserved to exist in the first place? Let coders write code. Most of them never dealt with lawyers and aren't interested in lawsuits. It's the lawsuits 'industry' looking to cause trouble.

A few days ago Elliot C. Cook and Jeffrey A Berkowitz (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) published "Successful Companies Don't Just Patent Everything—They Make And Follow A Strategy".

You can't patent everything anyway. Sooner or later, as in the US with its courts, you realise that the lion's share of your patents are fake, worthless, toothless. Or in their words: "In both of the above illustrations, the companies failed to develop and implement a patent strategy. Emerging companies should concentrate on building a patent monopoly covering the most commercially important aspects of their new technologies while making efficient use of their patent dollars and the precious time of their key inventors. In short, when companies formulate their business strategy, patents should play an integral role. Patenting too sparingly or recklessly is not strategic and is not a way to generate company value."

So even a law firm that promotes software patents quite actively admits these downsides. In some cases, as in this new example of Swisscom and ASSIA, companies just cross-license and move on (wireless for the most part in this particular case/agreement, not algorithms).

So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords. We already wrote dozens of articles to that effect and over the past week we saw several new examples.

Japanese blogger Satoshi Watanabe wrote about patent trolls or feeding a patent troll in Japan for blackmail purposes. “Patent utilization” is what he (or they) use as the newest euphemism (rather than enforcement, monetisation, assertion and so on). He also alludes to "artificial intelligence (AI)-based" at the end:

“Patent utilization” has been a buzz word in Japanese IP industry. There seems to be an increasing number of companies thinking that they should make effective use of patents that haven’t been used by themselves; i.e. monetize such patents by selling or licensing them to others. Actually, a client of ours has asked me what salable or licensable patents are like.

First of all, you may need to know when a patent transaction occurs.

[...]

It's hoped that artificial intelligence (AI)-based solution will be developed.


That last part refers to how patents are managed, but it's part of a recent (past year) trend. They keep bringing up "AI". Some so-called 'IP' lawyers admitted to me that they don't even really understand what it means, yet they keep using the term. It's like a fashion.

How about this new article (4 days old) that speaks of "machine learning-base [sic] anomaly detection" in relation to new Anodot patents? George Leopold wrote about these bogus software patents being granted in the US. It's incredibly hard to believe/imagine patent courts tolerating such abstract/mathematical methods being patented as a monopoly.

To quote from the article:

Anodot, which focuses on using machine learning techniques to spot anomalies in time-series data, announced a pair of U.S. patent awards this week covering its autonomous analytics framework.

The analytics vendor said Thursday (Oct. 11) it has been granted two U.S. patents for algorithms that allow users to apply machine learning-base anomaly detection. The algorithms are designed specifically to quickly identify the source of anomalies in large data sets, then perform root-cause analysis. The approach is promoted as faster than traditional business intelligence tools or dashboards.

[...]

Anodot was launched in 2014 when its co-founders realized there was an unmet need for fast and accurate time-series analysis.


Those are software patents. It's algorithms, but they dress it all up in innovation- and novelty-sounding terms. Why did the USPTO grant such software patents? How about this new application from Apple? A lot of press about it this past week (dozens of articles), as is typical for Apple. But Apple will never sue with this patent/s, so we won't see the courts lecturing Apple on why it's patent-ineligible. If it ever gets granted in the first place...

Well, the patent office got its money anyway... and Apple got puff pieces about how it's presumably combating spam.

In other 'news', this time from JD Supra (a press release), patent law firms (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this case) still try to figure out how to get bogus patents on software and nature, even if courts will reject these. From The Current State of Patent-Eligible Subject Matter:

In the wake of the Supreme Court’s Mayo and Alice decisions, uncertainty has surrounded what inventions are patent eligible in the United States. In Mayo and Alice, the Supreme Court developed a two-step test to determine patent eligibility. Step one determines if the invention is directed to a law of nature, natural phenomenon, or abstract idea. If so, the second step determines if there is an inventive concept sufficient to ensure the patent amounts to significantly more than the ineligible concept itself.[i] While this test has led to uncertainty in what inventions remain patent eligible, post-Mayo/Alice case law has begun to shed light on what is patent eligible in the United States. The current state of patent eligibility in the technology areas most impacted by the Mayo/Alice two-step are outlined below.

[...]

Software and Business Method Claims

Software and business method patents have faced significant challenges since the Mayo/Alice decisions. Software claims, are not per se ineligible, however software claims that merely gather, analyze, and output data are patent ineligible.[xii] Software claims can be patent eligible when they are directed to an improvement in the way computers operate.[xiii] Additionally, claims which recite specific limitations to overcome deficits or problems in the prior art have been found patent eligible.[xiv] Based on these holdings, to be patent eligible software claims must recite specific steps to obtain a desired result rather than recite merely the result itself.[xv]


After Alice and In Re Bilski we can pretty much assume things have changed profoundly. Sure, the patent office might still grant such patents. But what matters a lot more is whether those will be enforceable in court at any point before their expiry. The culture of patent embargoes and patent maximalism needs to end at the patent office too in order to preserve any presumption of patent validity. The USPTO continues to assess its performance using the wrong yardstick, e.g. number of patents granted. Patent maximalists are meanwhile pushing the lunacy which is computer-generated patents (we put the following articles in our daily links last week). Here's what Law 360 and IAM are suggesting:



So what they're basically saying is, let a bunch of machines manage the patent system; as if that's going to make matters any better...

Published a few days ago in the The National Law Review and another publication was this article of Christina Sperry (Mintz) and the litigation industry; under "Subject Matter Eligibility Under 35 U.S.C. €§ 101" they admit that "AI" patents are just bogus software patents but promote these fake patents anyway. To quote the relevant part:

Subject matter eligibility for patent under 35 U.S.C. €§ 101 has been a particularly hot topic since the 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int'l. Section 101 patent eligibility has particular relevance to AI and digital health since they often involve computers and/or data processing whose mere presence, reference, or implication in claims frequently give rise to subject matter eligibility questions during patent prosecution as well as during litigation after patent issuance.

The breadth and gravity of current €§ 101 issues has been explored elsewhere and is beyond the scope of this article. In general, Alice and subsequent lower court decisions have made it more difficult to get patents issued with claims involving computers and/or data processing. It is therefore important to consider potential patent eligibility concerns under €§ 101 during the patent application drafting process in order to preemptively address these concerns as much as possible before the application faces any challenges during prosecution or during litigation as an issued patent.


To be quite frank, the abundance and overuse of the term "AI" by patent lawyers is a cause for concern. The only more worrying thing is seeing administrators at the EPO and USPTO adopting the term as well; they use that as a sort of synonym for software patents and we're asked to believe that they grant such patents for the betterment of society or manage patents using "AI" (they just mean things like search and inferences) to expand human understanding rather than make staff redundant, only to be replaced by vastly inferior performance.

Recent Techrights' Posts

IBM Layoffs in India, More Coming Soon, Say Apparent Insiders
Threads regarding IBM layoffs
 
Slopfarm: Firing 35,000 Employee is "Saving the Company"
"Big Blue" is getting smaller all the time
Slopfarms About the "Linux CEO" Linus Torvaldos [sic]
nowadays NVIDIA builds and helps build a giant Ponzi scheme
Vista 11 is "10" (Ten Percent)
Some months ago Microsoft openly admitted that it had lost (shed off) hundreds of millions of Windows users
Dealing With Online Pogroms
lawfare funded by third parties
The Year Apple Would Rather Forget
We await further stumbles and falls from Apple (in 2026)
"EU's reform agenda threatens to erase a decade of digital rights"
This is really sad for those of us who spent decades promoting and boosting/advocating the EU
Gemini Links 29/12/2025: Earlier "Happy New Year 2026" and "Dead Archivist Society"
Links for the day
Links 29/12/2025: Putin Critic Sergei Udaltsov Imprisoned, Cloudflare’s Outages Discussed
Links for the day
LLMs Are Inherently Parasitic, We Need to Treat Them Accordingly
a maintenance burden for those who possess actual intelligence
Links 29/12/2025: Bottled Water Considered Harmful, Cheetos Promoting Nazis in Europe
Links for the day
EPO People Power - Part XVIII - European Patent Office "Paints Itself as Progressive While Literally Being Represented by Cokeheads"
To what length/s will German authorities and media (not just in Germany) go to protect the EPO's "precious image"?
What IBM Will Do to Red Hat in the Coming Year or Years
This won't end up well for GNU/Linux as a whole
Not Turning in His Grave: When People Die, Their Corporate Destruction Becomes a "Turnaround"
All he did was mass layoffs - a tradition that has not ended since then
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, December 28, 2025
IRC logs for Sunday, December 28, 2025
Louis Gerstner Has Died, His Legacy of Mass Layoffs at IBM Hasn't
Hagiographies will follow. They will say he "saved" IBM.
Links 29/12/2025: The Sunday Routine, Limits of Memory, and Gemini Vocabulary
Links for the day
Doxing is Illegal in the UK (Even If You're Based in the US)
Somebody has just added my identity (name, mugshot etc.) to a "hitlist" site of a political nature, pandering to violent people
Misunderstood Weapons of Censorship
It's cruel world out there. One needs to be aware of these shady activities, including "censorship-as-a-service".
Google Confidently Wrong, Nowadays Defaming People Too
I can relate as people did this to me and to my wife
What Happens When Americans Are Out of Office (Away From Work) for a Week? Vista 11 "Share" Falls to Just 10%.
How's that for slow adoption?
2026 Will Have EPO Focus, People Will See What the EPO is Trying to Hide
We certainly hope people will be held accountable
EPO People Power - Part XVII - Drugged, Stoned, and Drunk at the Office During Working Hours (Campinos Friend and Propaganda Chief Has Long Done This)
It's a total disgrace that press all over Europe is still trying to cover this up!
Gemini Links 28/12/2025: Health Ordeals and Discontinued Pedals
Links for the day
Slop About "Linux" Came Only From One Slopfarm This Weekend
Another day has passed with no LLM slop found in our RSS feeds
Links 28/12/2025: 'Digital Detox' and Slop "Backlash Grew Massively in 2025"
Links for the day
Links 28/12/2025: "Mass Quitting Apple" and "Generative AI Industry is Fraudulent, Immoral and Dangerous"
Links for the day
Links 28/12/2025: Fascination, Holidays, and Mormonism
Links for the day
Microsoft's Weapon Against the Reality of XBox (the Console) Dying Seems to be LLM Slop
XBox is dead/dying
Raffles for the Immaterial: Unauthorised Bingo for Red Hat "Vouchers"
This is IBM and some slop images
Andy Farnell on Standing Up Against Technological Oppression
some portions from it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 27, 2025
IRC logs for Saturday, December 27, 2025
Once Again, GAFAM Deletes All Your Data, Only Corrects This After Millions of People Lead an Uproar Online ("Richard Stallman Warned Us About This")
No lessons learned, eh?
Linus Torvalds Blasts Software Freedom Conservancy (SFC) for Attempting to 'Protect' Linux
Like it 'protects' women
New Record for GNU/Linux in Australia (at Microsoft's Expense)
Windows is at an all-time low, GNU/Linux... all-time high
Fighting Over Whose Pockets Are Deeper (or Who Borrows More Money)
When processes favour those who are more wealthy (or more willing to go into infinite debt or steal money of other people) those processes match the attributes of lawfare rather than law
You Know Your Critics Are Jealous and Have Inferiority Complex When...
One day we'll write about all this in great depth
Starting a Book With a Flawed Premise or Weak Hypothesis
To me, Schneier is a sort of "RMS of sec"
Microsoft's Mass Layoffs (30,000+ in 2025) Not About "AI", Just Business Failure
"AI" is replacing... the old excuses for mass layoffs
"But Corruption is Everywhere"
"We'll always have Polio..."
EPO People Power - Part XVI - Berenguer Does Not Speak German, So What Did He Tell German Police That Busted Him?
based in Germany and does not speak the language
Challenges for EPO Insiders to Try to Tackle in 2026
Nothing will get solved as long as the circus that runs this show tries to keep the circus going
Days Without Slop About "Linux"
It's time to move on
Links 27/12/2025: Canada Post Strike Called Off, Debate About Europeans "Working Over Christmas"
Links for the day
Gemini Links 27/12/2025: Household Appliances and Flight Fright
Links for the day
Links 27/12/2025: US Cracking Down on Whistleblowers, Expanding Bombardment Campaigns Worldwide
Links for the day
Resuming EPO Coverage Today, Can António Campinos 'Survive' Cocainegate?
We said we'd continue in the weekend
Links 27/12/2025: More Attacks on Media (Meduza Co-founder Sentenced to Prison in Absentia), "What Owning Music Means To Me"
Links for the day
Gemini Links 27/12/2025: geminiprotocol.net Downtime and Capsular Gemlog Manager
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 26, 2025
IRC logs for Friday, December 26, 2025